Structure and Function in Criminal Law

By Paul H. Robinson | Go to book overview

11
Drafting a Code of Adjudication
Chapter 10 set out the principles for drafting a code of conduct. This Chapter considers the same questions for drafting a code of adjudication. How can one best draft a code that clearly articulates the subtle distinctions in the complex adjudication decision concerning how much liability ought to be imposed, if any? Here are five drafting principles.
A. ADOPT A CODE STRUCTURE THAT MATCHES
THE ANALYTICAL PROCESS
Whether the adjudicator is a prosecutor deciding whether and what to charge, a defence counsel giving advice on a proposed plea agreement, a judge writing jury instructions, or a jury deliberating a verdict, the process of assessing liability has several logical steps. By having a code of adjudication organized around that analytical process, the code can increase the chances that the adjudicator will understand and follow that process.The analytical process properly follows three questions:
1. Has the defendant violated the rules of conduct?
2. If so, is the violation sufficiently blameworthy that criminal liability ought to attach?
3. If so, how much liability should be imposed?

The code of adjudication in Appendix B is organized around these questions. The process begins by comparing the defendant's conduct to that prohibited by the code of conduct, the same code that has been available to the defendant and all members of the public. Did the defendant's conduct violate the code?

Section 100. VIOLATION OF CODE OF CONDUCT

A person violates the Code of Conduct, for the purposes of this Code of Adjudication, if the person violates a prohibition or duty in Part II of the Code of Conduct and does not have a justification for such violation under Part IV of that Code.

A few additional provisions may be needed to make this determination with precision, provisions that are not necessary in the code of conduct itself, such as provisions giving more detailed explanations of what constitutes

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